In the midst of the Commonwealth’s most consequential debate over criminal justice reform in a generation, it is important that every major player have a voice. Suffolk County District Attorney Dan Conley apparently does not agree.
Beacon Hill is weighing a series of substantial changes, including bail reform, checks on the use of solitary confinement, and a repeal of mandatory minimum sentencing laws.
It’s that last effort that’s raised the ire of Conley and other district attorneys around the state, who argue that mandatory minimums are an important tool for cracking down on some of Massachusetts’ worst offenders.
They are free to make that argument, of course — to push back on advocates who say the laws are too rigid and punitive.
But Conley went too far at a recent conference at Boston College Law School when he suggested that his most prominent antagonist in the fight — Ralph Gants, chief justice of the Massachusetts Supreme Judicial Court, and an outspoken advocate for restoring judicial discretion in sentencing — should dial it back.
Conley said Gants is “being more political than any chief justice I’ve ever seen, frankly, in my 30-plus years of practice,” according to Commonwealth Magazine, adding that he had “heard from other judges” who think “it’s a bit unseemly.”
In a follow-up interview, he said the duty to stay out of politics is particularly pronounced in Massachusetts, where judges are appointed, not elected. “We give them that sort of life tenure, if you will, so that they will, in fact, stay out of the political process — they will hold themselves out as just independent arbiters of the law,” he said.
But even if there is a higher standard in Massachusetts, it’s clear that Gants has met it.
The state’s code of judicial conduct says “judges possess special expertise in matters of law, the legal system, and the administration of justice” and are free to share that expertise by “proposing new legislation” or “commenting on new legislation proposed by others.” The code goes on to cite several specific topics judges may address, including “judicial discretion in sentencing.”
Charles Gardner Geyh, a law professor at the University of Indiana and one of the nation’s leading authorities on judicial ethics says, “I really am hard-pressed to see what the ethical downside is to judges offering their insights on a policy that they implement every day of the week.”
Geyh says there is a legitimate conversation to be had about the merits of mandatory minimums, and ultimately it is up to lawmakers to decide the issue, but “the idea that judges shouldn’t be a part of that conversation because it’s too ‘political’ — that’s just wrong.”
Gants’s advocacy may be more pronounced than that of recent chief justices in Massachusetts, but it’s not unusual by national standards. Research by the National Center for State Courts shows chief justices in Maine, New York, Missouri, and Georgia have called for sentencing reform at various points in the last couple of decades.
South Carolina’s chief justice was blunt in her state of the judiciary address in 2006: “Sentencing in the United States,” she said, “is a national disgrace.”
On the federal level, several judges have spoken out against mandatory minimum sentencing laws. Supreme Court Justice Anthony Kennedy has testified before Congress about their flaws, and US District Judge Jed Rakoff called them “pernicious” in an article in The New York Review of Books.
Judges have had limited success in convincing lawmakers to roll back mandatory minimums. And here in Massachusetts, Gants may not fare any better. The district attorneys are a powerful force in the state Legislature, and Governor Charlie Baker has made it clear he has a limited appetite for criminal justice reform.
But this is an issue that should be vigorously debated. And there is nothing untoward about the chief justice of the state’s top court playing a central role in that debate.